Become the Executor of an Estate

People usually name an executor to their will at the time they write it. However, the court must approve the executor. If no executor is named in the will, the probate court will appoint someone. If you are named as executor or appointed by the court, you will take responsibility for properly handling and distributing the assets in the decedent’s estate.

Steps

Understanding an Executor’s Duties

  1. Learn what an executor does. Generally, an executor (or “administrator” or “personal representative”) preserves the deceased’s estate in order to pay off debts and taxes before distributing the remainder to the people entitled to it.[1] The full set of duties is extensive. A partial listing includes:
    • Filing the will in the probate court. You must file the will in the appropriate local court even if the will does not state that you must do this.[2]
    • Determining whether the will needs to be probated. Not every will needs to go through probate. Depending on your state, you may be able to avoid probate altogether by using a “summary administration” procedure or by using informal administration. You will need to consult your state law to determine what non-probate options are available.
    • Finding the deceased person’s assets and keeping them safe. You will need to collect estate property held in the hands of other people. You must also protect them.[2] This may require that you rent storage facilities.
    • Contacting agencies and businesses. You will need to close various accounts that the deceased had, such as bank accounts, credit card accounts, and various insurance policies. You will also need to contact pension plans, the Social Security Administration, and any other governmental or private organization that paid the deceased benefits.[3][4]
    • Finding creditors the deceased owed money to and paying off legitimate claims. If you know the creditors by name, then you will contact them directly. You will probably also have to advertise in a newspaper where the decedent lived. After you receive claims on the estate, you will have to decide which are legitimate and pay them.[5]
    • Contacting anyone in debt to the deceased and collecting on the debts.[6] As the executor, you will need to make sure that you collect on debts owed to the deceased so that this money can be added to the estate and then distributed to beneficiaries.
    • Paying taxes. If the estate owes taxes, then the executor is responsible for making sure that they are paid accurately and on time.
    • Distributing property specifically given to beneficiaries or heirs. The will likely designates specific pieces of property to individual beneficiaries. You will be responsible for coordinating with the beneficiary for delivery or pick-up.
    • Liquidating the remainder of the estate. Some estate property will not be distributed by the will; also, no family members may want them. If this is the case, you need to sell this property and then distribute the proceeds to beneficiaries.
    • Closing the estate. As the executor, you will be responsible for informing the court that all assets have been distributed and you must petition to close the estate.
  2. Understand potential liability. As an executor, you have a duty to exercise reasonable care when dealing with the estate’s property. You also owe the beneficiaries a duty of loyalty and good faith.[7] If you breach either of these duties, then the beneficiaries could sue you in court.[8]
    • You will discharge your duty of reasonable care if you use the same amount of care when handling the estate’s property as you would use when handling your own.[8] You discharge your duty of loyalty when you administer the estate solely in the beneficiary’s interest and not in your own.[8]
    • State law may impose additional fiduciary duties, which can often be quite specific. For example, California requires that executors disclose assets, properly complete accounting, and distribute assets properly.[9] Virginia requires that executors deal with multiple beneficiaries impartially and that the executor and defend against lawsuits.[7]
    • For a full list of fiduciary duties, you should contact a lawyer.
  3. Research potential compensation. You typically can be compensated for the work that you perform as the executor. Compensation levels depend by state. States often peg the amount of compensation to the size of the estate. For example, executors in Oregon are entitled to compensation according to the following formula:
    • 7% of the first $1,000 of the estate
    • an additional 4% of any amount over $1,000 but less than $10,000
    • an additional 3% of any amount above $10,000 up to $50,000
    • an additional 2% of any amount over $50,000.
    • As executor in Oregon, you would also be entitled to 1% of non-probate property, e.g., life insurance proceeds.[10]
  4. Weigh the pros and cons. Before taking on the responsibility of becoming an executor, you should take some time to consider whether or not you want to do the job. A good executor is careful, patient, organized, and focused on doing an excellent job.[11] You should also consider:
    • The amount of time you have to commit. Look over the list of responsibilities and then take a look at the size of the estate. An executor can spend six months or more administering an estate.[11]
    • How familiar you are with the estate. If you have been helping an elderly parent get his or her financial assets in order, you may be very familiar with the estate already. This familiarity can increase your comfort in the role of administrator and the speed with which you can handle the administration.
    • How well you get along with the beneficiaries. If you are afraid of being second-guessed, or if you think emotional disputes are likely, you may not want to serve.[11]
    • Whether or not there is anyone else who can do the job or help serve as co-executor. If you think someone would be more competent at the job, you may wish to defer to her or him.
    • You should realize that even if you are named as the executor in a will you can decline.[11]
    • Also realize that you can stop being the executor at any time. You will need to provide the probate court with a written record of what you have done.
  5. Meet with an attorney. If you have questions about being an executor, including the extent of fiduciary duties, then you should contact an experienced attorney. A probate attorney can also help you consider whether or not you want to be the executor in the first place.
    • Should you become the executor, some states will require that you hire an attorney. Florida, for example, requires that the estate be represented by an attorney.
    • You can find an experience probate attorney by contacting your state’s bar association, which should run a referral service.

Becoming Executor if Named in the Will

  1. Find the will. Many wills will name the executor. You might know already if you were named, but sometimes people are surprised to have been named executor without having been contacted or asked.
    • You can first look for the will by going through the deceased’s papers, filing cabinets, or desk drawers.[12]
    • You can also look in safe deposit boxes or contact the deceased’s lawyer.[12]
    • Understand what you are looking for. The will should be titled “Will of [Deceased’s Name]” or “Last Will and Testament.” Sometimes wills may be handwritten.[12]
  2. Check that you are eligible to serve as executor. States have different rules regarding who may be appointed executor of an estate. However, most states require that the executor is legally capable of handling his or her own affairs. Additionally, you must be at least 18 years old.
    • In Kansas, a minor may serve as the executor of an estate if named in the decedent’s will.[13]
    • Many states do not allow convicted felons to serve as executors.
    • There may be other requirements. Check with your state’s court division. Most states have websites listing the requirements that must be met.
  3. Satisfy residency requirements. In most states, a nonresident typically cannot serve as an executor. Some exceptions include a nonresident who is a child or blood relative of the decedent, or a nonresident who is named by the decedent in the will.
    • For example, a state could allow a minor nonresident to serve as executor of an estate, if that nonresident minor was named as executor in the decedent’s will.
  4. File a petition for probate. Even if the will names you as the executor, you cannot act as the executor until the court appoints you. Accordingly, you need to initiate the process by filing a petition for probate with your local probate court. Most states should have printed “fill in the blank” forms for you to use. Ask the court clerk.
    • The process and forms may differ slightly depending on your state. In California, you can use this blank form.
  5. Mail notice to beneficiaries and others. You must send notice to all beneficiaries named in the will and all legal heirs about the death and the probate hearing. This gives them a chance to object to both the validity of the will as well as your being appointed executor.[14]
    • You must also publish the notice in the newspaper where the decedent lived. This alerts creditors to the hearing.[14]
  6. Attend the hearing. Several weeks after the petition is filed, you will have to attend a hearing. At the hearing, the court will attempt to confirm the validity of the will.
  7. Get the “Letters Testamentary.” Once the court approves an executor, that person gets “Letters Testamentary.”[15] These letters allow the executor to act on behalf of the estate. For example, you may need to provide the letter to a bank to close an account or to a credit card company to close a card.
    • If you find that you no longer want to continue as the executor, then you should file a petition with the court, in which you explain your reasons. If the court believes that you have “good cause,” then it will name a successor executor. Often, the deceased named a successor executor in the will. If not, the court will hold a hearing and consider other family members for the job.[16]

Requesting Appointment as Executor if not Named in the Will

  1. Get a copy of the form for appointment as executor. If you have determined that you are qualified to serve as the executor of the decedent’s estate, then contact the probate court to get the form necessary for appointment as executor from the Clerk of Court.
    • You can get the form online or by visiting the court in person. Forms vary from state to state, so make sure that the form you fill out specifically references your state.
  2. Fill out the application form properly. Make sure that you follow all instructions when completing the form. Avoid common mistakes when filling out the form. These might include:
    • Not correctly notating the full name of the deceased.
    • Incorrectly completing the information asked for.
    • If you have any questions about completing the application, contact the clerk of the probate court. Many clerks will help potential executors and answer questions.
  3. Have form notarized. Most states require that the form be notarized, sworn to or witnessed. Find a notary public in your area.
    • Be sure to bring sufficient personal identification. Typically, a valid driver’s license or passport will suffice.
  4. Identify if you need additional documentation. Some jurisdictions require other information from potential executors; make sure that you know what documentation you need and bring that documentation to the probate court with you.
    • You will likely need to include a death certificate for the decedent as well.[17]
  5. Bring your application to the Court Clerk’s office. File your application in the jurisdiction where the estate is held.
    • You don’t need to make an appointment, but you should check the hours of the Office either online or by calling.
    • Be sure to make multiple copies of the forms for your own records.
  6. Pay the filing fee. In order to file your application, you will need to pay a fee. Make sure that you can pay the filing fee at the time you turn in your application to the court. If you do not know how much the fee is, call the probate court or look online.
  7. Send out a Notice of Application. Typically, you must also notify persons with an interest in the estate that you are applying to be executor. Most states have a “Notice of Application” that you may send out to all estate beneficiaries or interested parties.
    • Publish a notice in the local newspaper. Check with the court to ensure you are doing this properly.
    • Send a notice to beneficiaries, heirs and creditors.
    • Alert the court that you have distributed Notice of Application.[18]
  8. Obtain a surety bond if required. Some states require that the proposed executor post a surety bond insuring the value of the estate. A surety bond is an insurance policy against wrongdoing. When the executor purchases a bond, the insurer agrees that if the executor makes a mistake in the process of settling or handling the estate, either deliberately or unintentionally, it will compensate the beneficiaries under the will for any money lost.
    • If the will’s testator names an executor in the will, the bond may be waived. This may be the case if the testator specifically states that the executor does not have to secure a bond.
    • A bond is typically required in all other circumstances. That is, a bond is required when the will does not waive the requirement for the named executor. A bond is also required if the will does not name an executor at all.
    • To Save Money on Surety Bonds, search online for a company that provides bonds for your area. You can also check with the Clerk of Court, who will be able to recommend a reputable company.
  9. Attend the hearing. At the hearing, any beneficiaries or heirs present may object to your appointment as executor. At the same hearing, the court will attempt to validate the will, which may also be challenged by someone.
    • If there are no objections to either the will or your appointment as executor, then there may not even be a hearing.

Handling a Contestation of Your Application

  1. Contact an attorney. If someone files an objection to your appointment, contact a probate attorney for advice on how to fight the challenge. This attorney will give you advice on the best strategies for winning your case at a trial.
    • Consult with an attorney experienced in probate law, with experience in trial work. You can look at the attorney’s website to see if he or she has handled contested wills or appointments before. Be sure to ask about any relevant experience when you meet for a consultation.
    • Also look for certification in probate. Some states will grant specialty certification to attorneys in various areas, including probate. Texas, for example, grants specialization in Estate Planning and Probate.[19] To qualify, the attorney must have demonstrated significant involvement in the field and pass a written exam.[20]
  2. Develop a trial strategy. You may not know why you are being challenged. Nevertheless, there are common grounds for challenging the initial appointment of an executor. For example:
    • The objector might argue that the will is invalid. For example the will may have been forged or improperly witnessed.[21]
    • The objector might claim that you are unfit to serve. For example, if you served jail time, then the court could find you unfit. Also, if you lack sufficient mental capacity, then the court may grant an objection to you serving as executor.[21]
  3. Schedule a trial. If someone contests your appointment as executor, the probate court will schedule a trial. The trial will allow you and your challenger to present your respective cases.[21]
    • You will probably attend a hearing before the trial. At the hearing, you will learn why the objector is challenging your appointment. You will also set a trial schedule and trial date.
    • Only parties who have a stake or possible stake in the decedent’s estate can challenge the appointment of an executor.[21]
  4. Present your case at the trial. You or your attorney can present your case to the judge. It is best to have an attorney, as probate issues can be complicated.
    • Your evidence will track whatever the objection is. For example, if the objector claims that the will was improperly witnessed, then you will need testimony from the witnesses. This testimony should affirm that the deceased was in sound mind when he or she signed the will.
    • If your capacity to serve is challenged, then you may need to present evidence of your mental condition. Talk with your lawyer about what evidence you would need.
  5. Wait for the judge’s ruling. After hearing both sides of the case, the Judge will either rule on your appointment immediately or take the issue under advisement and issue a written ruling at a later date.[21] If you are appointed, the court will prepare a certificate of appointment for you, which will designate you as the executor of the estate. In some states, this document is called the “Letters of Administration.”
    • If you are not appointed, the Judge will appoint another executor in your stead.

Tips

  • Don’t delay after being appointed executor. Some decisions must be made fairly quickly. Estate tax decisions need to be made within nine months, for example. Furthermore, the executor has a duty to collect and maintain estate assets. Any delay may result in more difficulty in locating and preserving the assets.
  • If you are appointed as executor, consult with an attorney experienced in probate law. In some cases, probating a will may not be necessary.
  • Consult with an accountant if you are appointed as executor. The executor assumes the responsibility to ensure payment of the testator's personal income taxes as well as taxes on income earned by the estate following the testator's death. This happens prior to distribution of the estate among the beneficiaries. Estate inheritance taxes may be owed to the federal and/or state governments, but generally, these taxes are limited to larger estates.

Warnings

  • As with any legal process, dealings with the probate court need to be detailed and precise. Consider using an attorney who specializes in probate law to make sure everything is handled correctly and find promptly.

Related Articles

Sources and Citations

  1. ↑ http://www.nolo.com/legal-encyclopedia/what-does-executor-do-30236.html
  2. ↑ 2.0 2.1 http://estate.findlaw.com/estate-administration/what-does-an-executor-do.html
  3. ↑ http://executor.org/plan/notify-organizations-of-death/social-security-administration/
  4. ↑ http://executor.org/plan/notify-organizations-of-death/insurance-companies/
  5. ↑ http://executor.org/plan/notify-organizations-of-death/file-notice-to-creditors/
  6. ↑ http://executor.org/plan/notify-organizations-of-death/send-notice-of-death-to-debtors/
  7. ↑ 7.0 7.1 http://www.wolcottriversgates.com/fiduciary-duties-during-administration-of-trusts-and-estates/
  8. ↑ 8.0 8.1 8.2 http://info.legalzoom.com/failure-execute-fiduciary-responsibilities-executor-will-4722.html
  9. ↑ http://www.kaiwesselslaw.com/Estate-Administration-Litigation/Removal-of-an-Executor-or-Trustee.shtml
  10. ↑ http://www.hg.org/article.asp?id=22092
  11. ↑ 11.0 11.1 11.2 11.3 http://www.nolo.com/legal-encyclopedia/accept-job-as-executor-estate-32439.html
  12. ↑ 12.0 12.1 12.2 http://www.nolo.com/legal-encyclopedia/finding-filing-the-will.html
  13. ↑ Kansas Statutes Annotated, Chapter 59 Article 7.
  14. ↑ 14.0 14.1 http://www.alameda.courts.ca.gov/pages.aspx/Probate-a-Decedents-Estate
  15. ↑ https://www.nolo.com/dictionary/letters-testamentary-term.html
  16. ↑ http://info.legalzoom.com/end-obligations-being-executor-will-20474.html
  17. ↑ http://www.virginiaestatelaw.com/main/chapters/qualification/procedure.shtml
  18. ↑ http://www.nolo.com/legal-encyclopedia/how-probate-process-works-information-32438.html
  19. ↑ http://www.tbls.org/SpecialtyAreas.aspx
  20. ↑ http://www.tbls.org/WhyChooseBoardCertified.aspx
  21. ↑ 21.0 21.1 21.2 21.3 21.4 http://info.legalzoom.com/challenge-executor-will-4045.html
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